A BBC investigation has unearthed new evidence in not one but two long-standing cases of alleged wrongful conviction that could lead to the cases being sent back to the Court of Appeal. Last night’s Panorama raised serious questions about the quality of investigation by the miscarriage of justice watchdog in both cases and more widely.
The journalist Mark Daly took another look at the murder convictions of Eddie Gilfoyle, a case that has featured extensively on the Justice Gap, and Kevin Lane, found guilty of a 1994 gangland killing. Lane, who spent 20 years in rpison for the murder of Robert Magill, has been turned down twice by the Criminal Cases Review Commission (CCRC); and Eddie Gilfolyle’s application to the group was rejected in July 2016 after having been with the Commission for six years. A high court challenge of that rejection failed last November as reported by the Justice Gap.
Kevin Lane’s QC, Joel Bennathan called new analysis by a ballistics expert ‘game-changing’. A gunshot residue expert Angela Shaw told Panorama that ‘no evidential strength’ should be placed on finding such a small amount.
Eddie Gilfoyle’s lawyers are working on a new application to the CCRC. Gilfoyle was jailed for life in 1993 for the murder of his eight and a half months pregnant wife, Paula who was discovered hanging by her neck in the garage at the couple’s home. It was claimed that Gilfoyle staged her suicide and faked her handwritten suicide notes.
At the heart of the prosecution case was the notion that Paula Gilfoyle was looking forward to the birth of her child and had no history of depression. Instead, Gilfoyle’s lawyers argued that Paula had been subjected to ‘appalling mental trauma’ as a result of an earlier relationship with a convicted murderer. Suicide and depression were persistent themes throughout her teenage diaries which were only made available to Gilfoyle’s lawyers in 2010.
As reported by the Justice Gap, the CCRC dismissed the value of the diaries as not revealing ‘anything more than adolescent experiences’. Panorama commissioned a leading antenatal specialist to review both Paula’s letters and diaries. Dr Trudi Seneviratne disagreed with the Commission’s dismissal of the diaries. She argued that midwives today might have identified warning signs of depression and even prevented Paula Gilfoyle’s suicide.
Lawyers specialising in criminal appeals told Panorama the CCRC had become increasingly timid in the face of criticism from the court over cases it referred. Eddie Gilfoyle’s solicitor Matt Foot told Mark Daly that the six year delay in the case had been ‘almost inhumane’. ‘The CCRC has failed to see a single witness,’ he said. ‘They failed to go to the scene. They haven’t really left the building to investigate this case. There are so many of these cases that have been prepared by people doing these appeals that are just getting knocked back and that can only be explained by cowardice and a lack of investigation. it has become a cultural thing.’
Talking to the Justice Gap, Mark Daly said: ‘We have some evidence to suggest that the CCRC itself accepts that it’s under extreme pressure financially and in other ways.’ Referring to CCRC board minutes obtained following freedom of information requests, Daly said: ‘They have had to fight off – or at least warn against – a culture developing in the organisation where finding new evidence in cases was seen as “troublesome” because of the work it would involve.’
‘If that is even being mentioned as a potential issue in the organisation then, of course, people who are campaigning for those they believe to be innocent are going to be deeply concerned. That’s a big deal,’ Daly continued. ‘What the CCRC is saying publicly is that the pressures that they are under aren’t affecting performance. That’s the big question.’
The Centre for Criminal Appeals obtained the board minutes through FOI requests. The documents go back three years and have been seen by the Justice Gap. They also reveal that Ministry of Justice has raised the prospect of charging CCRC applicants a fee.
The minutes record case review managers struggling to cope with ‘large, sometimes unworkable portfolios’.
There was a concern amongst some CRMs [case review managers] that when they found a referral point it meant more work and we need to guard against a culture where referral points are seen as something trouble to deal with because of overall work pressures.
From CCRC board minutes, January 27 2015
Mark Daly points out that the CCRC referred just ’12 out of 1,563 cases’ last year which represents an unexplained and dramatic drop from a 20-year average of 30 cases. ‘That could be a blip,’ Daly told me. ‘That said, the evidence we saw is that caseworkers had about 24 cases on their [desk] at any one time as against an internal milestone of 19. People might well think that a target of 19 is too high. If you are someone who has suffered a miscarriage of justice, is that something that is going to give you confidence? If a CCRC case review manager has 24 cases on their books, then you might get one day a month. That is the reality of the pressures they are under.’
The CCRC’s board papers show it is ‘no longer fit for purpose’, commented Emily Bolton, the Centre for Criminal Appeals’ legal director. ‘Its caseworkers have unmanageable workloads and its substandard investigations are failing to put right miscarriages of justice.’
In minutes from last September, one commissioner expresses doubts about ‘whether the enquiries that led to the discovery of that non-disclosure would be made if the applications had been made today’. ‘We know from recent revelations that police are routinely withholding crucial evidence at trials,’ Bolton commented. ‘After conviction, only the CCRC has unfettered access to police files – yet in case after case it fails to read through these documents to check for evidence a wrongful conviction may have occurred.’
The CCRC rejected Panorama’s criticisms last night on Twitter.
On Panorama in general, no one who knows the CCRC well, or who understands how we work and the test we are required to apply, would recognise this characterisation of us or accept that we are not fit for purpose. It also failed to mention the 650 cases we have sent for appeal.
— CCRC (@ccrcupdate) May 30, 2018
Mark Daly said that he was ‘deeply disappointed’ that the CCRC ‘elected not to put anyone up for interview’. ‘I thought it would have been beneficial to the film but also to them for them to answer some of the concerns that people have,’ he said.
There was also criticism of a new hardening of the approach of Court of Appeal to appeals. The former appeal judge Sir Anthony Hooper argued that the watchdog had become more cautious because the court had set the bar higher than it had been in living memory. ‘It’s become much more difficult for an appellant to succeed…and, therefore that will no doubt influence [the CCRC] on what cases that they send through,’ he said.
Daly asked if he was saying the bar currently set by the Court of Appeal was wrong, Sir Anthony said: ‘I’m saying that.’
The CCRC has always denied that it has been cowed by an increasingly conservative appeal court. But minutes of a CCRC board meeting from December 2016 appear to acknowledge the pressures: ‘The Board agreed that the risk score for OPS/09 (CCRC reputation with the Court of Appeal) should be changed from moderate to severe.’
The Commission also rejected the characterisation by the Centre of Criminal Appeal that the watchdog appears to be ‘deeply worried’ about censure from the court. ‘Our relationship with the Court of Appeal is central to our role,’ the CCRC said. ‘What they have to say in the judgments they make in the cases we send them (and on other cases) is important. The real possibility test that we apply requires us to take note of what the Court does and says so we are bound to carefully consider the tone and content of its judgments.’
It’s not easy for miscarriage of justice cases to be properly investigated these days. Lawyers often do not get legal aid. There are a huge numbers of barriers in terms of people being able to get hold of the information they need in the first place and there are far, far fewer journalists who have the time and resources to give the stories that time they need. I would say it is incumbent upon the BBC to cover these stories. I yearn for the return of a Rough Justice style programme.
Red flags ignored
The watchdog appears to have missed an obvious line of investigation in the Kevin Lane case and one that led to two of its own high profile referrals being successful in the Court of Appeal. Forensic evidence was central to Lane’s conviction in 1996. His palm print was found on a bin bag and the creases were said to indicate the bag could have been holding a gun. That bag itself was found beside a single particle of gunshot residue in a car linked to the murder. ‘In today’s terms there would be no evidential strength placed on the finding of a single particle,’ a ballistics expert Angela Shaw told Panorama.
The journalist Louise Shorter, who heads up the Inside Justice investigative unit, was commissioned by Panorama to look at the case. Shorter had been aware of concerns over the safety of the conviction since working on another BBC programme, Rough Justice in the 1990s.
‘If a case lands on my desk involving gunshot residue, I would ask how much was there and would it pass today’s standards?’ she told the Justice Gap yesterday. ‘Since the Barry George and Dwaine George cases, the guidance to forensic scientists as to how they put across the evidence to juries has changed significantly: anything less than four particles of this particular type of gunshot residue and then a red flag should go up straightaway.’
Barry George’s conviction was quashed in the same year that Kevin Lane’s legal team made a third application to the CCRC. It was overturned followed a referral by the CCRC after a Panorama investigation identified concerns about a single speck on George’s coat which had convinced the jury that murdered Jill Dando. It was Cardiff Law School that identified the vulnerability of the gunshot residue evidence in the Dwaine George case as reported on the Justice Gap (here). The CCRC referred that case on the grounds there was ‘a real possibility’ the evidence of gunshot residue ‘does not now attract the value attributed to it at trial, and therefore does not support the identification evidence’. That conviction was quashed in 2014.
Sir Brian Leveson, giving judgment in the Court of Appeal, pointed to new guidelines on firearms residue issued by the Forensic Science Service in 2006, two years after George’s conviction. If the new guidelines were followed ‘the number and type of particles of residue found on the coat were so small so as to be at or near the level at which they could not be considered to have evidential value’, according to the judgment. If the judge at the original trial had access to the new guidelines his directions to the jury ‘would have been couched in terms of much greater circumspection and caution,’ it added.
Maslen Merchant, Kevin Lane’s lawyer, yesterday told the Justice Gap that it was a major breakthrough. ‘Kevin has always queried the palm print evidence. Post-Panorama, we now have new expert evidence that drastically undermines the prosecution case in that regard plus we have a ballistics expert saying that the gunshot residue isn’t admissible. The case has got to go back to the Court of Appeal now. It has to be quashed. There just isn’t anything left.’ Merchant is working with Inside Justice on the case.
Eddie Gilfoyle’s legal team is also working on a fresh submission. ‘The way the CCRC dealt with my case and then rejected me was shocking,’ Eddie Gilfoyle said last night. ‘It is heartening that people are starting to realise that the system is so flawed and so completely ineffectual that people like me cannot get justice. In the light of what Panorama have uncovered in my case, I am hoping that the CCRC will reconsider my case and refer it back to the Court of Appeal.’
Gilfoyle’s solicitor, Matt Foot said: ‘We would like to thank Panorama for making public the problems with the CCRC and the investigative work in discovering antenatal expertise which we will now be working on for a further submission.’
This article was published on May 31, 2018